When we were anticipating our move to China, we imagined that "Big Brother" would be reading our emails and listening in on our phone conversations.* Little did we know how true this would be!

While we always assumed that any conversation might be monitored by the government of our host country, that thought was no surprise to us, because was right in keeping with our Orwellian understanding of Totalitarian systems of government. We were educated in high school to believe that "they" don’t value freedom and privacy the same way that "we" do.

After all, one of the major differences between totalitarian and free societies is the protection of civil liberties, right? It was my paradigm that in the USA — in the land of the free — we have not only right to freedom of speech, freedom of religion, or freedom from warrantless searches, but also the "penumbra" of rights (think of this as an umbrella) which are necessary to effectuate those expressly protected rights. One of the watershed cases giving voice to this "penumbra" of rights was the case of Griswold v. Connecticut. The U.S. Supreme Court discussed several of the enumerated rights within the Constitution and noted that the Right to Privacy was a fundamental cornerstone which underlies those rights.** The U.S. Supreme Court has established that this penumbra of rights is protected by the 9th and 14th Amendments to the U.S. Constitution.***

In other words, as an American, I have a general right to privacy and freedom from unreasonable government intrusion into my private affairs. It goes beyond the "letter of the law" in terms of what is expressly enumerated in the U.S. Constitution. Under the 9th and 14th Amendments, this right to general privacy in my affairs extends to things the "founding fathers" could never have imagined, such as freedom from government intrusion into my right to use birth control or the right to home school my children.

This is not to say that police in the USA can never listen in on my phone conversations. If police want to listen in on my conversations in the USA, all they have to do is to convince a judge that maybe I’m breaking some law. If they convince a judge that I might be engaging in criminal activity then there would be "probable cause" to justify a warrant. The judge would then grant an order to allow police to listen in on my phone calls, intercept my emails, search my computer hard drive, or conduct any other kind of search which might be reasonable under the circumstances.

There are no such controls in China. For one, the judiciary is neither as influential nor as independent. Secondly, it’s not a society built on the notion of the individual as an independent unit, entitled to so much privacy and consideration. I wrote in another blog entry a few years ago, that it was my observation that if the right of the individual were to be balanced against the collective need, the collective would trump every time. I think I still agree with that notion. In this context, what it means is that when the collective need of the society for order, for predictability, for regulation of conduct, is balanced against the right of the individual to privacy, the group’s interest will trump that of the individual.

Westerners tend to react with shock and horror to this idea, but there are some good aspects to that. For one, the China of today remains an orderly society in spite of a seething lava of discontent just underneath the surface. Just 100 years ago, China was governed by feudal warlords. This is not a society that has a long history of self governance or resolution of issues through public debate. Order, in such a society, can be a good thing. When riots do break out, they tend to become violent mob outbursts, not the nonviolent sit-in’s more commonly associated with protest in the West. Crime, though it exists, is better controlled. (I, personally, felt safer walking on the streets in China than I do in the USA.) And when the collective power is applied to public works, the result is amazing. The Three Gorges Dam is but one example. Public debate was stifled, but the dam was built; and no matter what you think about it, that dam supplies power and controls flooding downstream, flooding which has caused catastrophic loss of life in years past.

So, there he is, Big Brother watching out for us, watching over us in China. The first thing one does upon arriving to live in China is to register at the local police station. And if you don’t register, well, they know about it and come knocking on your door asking to see your passport.

As for the electronic eavesdropping, it’s not that we ever really knew about it or could prove it was happening. No little message pops up on the screen and says, "Hi, my name is Xiao Xin and I’m going to be monitoring your email messages this morning!" Whatever monitoring was done was completely invisible — perhaps even all conjecture on my part.

Gee, my email seems to be loading really slowly this morning. Is it a coincidence, or is someone inside there just a slow reader?

Was it just a coincidence that my computer crashed right when I finished typing that "T" word?

Was it really a computer malfunction that caused my internet to die for a week when I said "x" in an instant message? (This happened fairly often, and I came to imagine these mysterious blackouts as warnings, like slaps on the hand, but who knows, maybe they really were random with no human explanation other than it must be my computer.)

What’s that little clicking noise on my phone?

Why didn’t my mom respond to my email, did she get the message?

I’ve read that there are over 100,000 people in China who are employed to spy on personal electronic transmissions.

Bill Clinton was right in one crucial aspect, however, which is the value of engagement. Electronic communications and email are so pervasive in China that it is impossible to monitor every conversation or every transmission. The web relies on key words to be trapped by computer programs designed to flag certain conversations. For example, I’m told that if you type one of the forbidden "T" words, a computer program will flag that email for special examination. A human will then determine what to do. If the person who typed something forbidden is Chinese, and if he is a blogger, he might have his computer confiscated or worse. For me, well, . . . I might just lose my internet connection for a few days, or, maybe it would go through. Most of my Chinese friends, however, think that even this is fairly low risk. They say there are so many people using the internet now in China that it is impossible for Big Brother to read or control everything.

As part of the solution to stifling speech, in China there are whole domains of names that are blocked. What we refer to as the "Great Firewall" makes it impossible for people to use the internet to research controversial views about certain topics. For instance, all of Wikipedia is blocked (because of factual assertions concerning some of the "T" places that are contrary to government viewpoints); all of Blogspot and Livejournal is blocked. For some reason, at one time all of the website of GWU (a university my daughter was applying to) was blocked. There are certain terms that one simply cannot research. (If you use common sense, you can think what these might be; I’m not going to type them here!) This was the subject of the famous journalist discontent during the Olympics. It’s not my intent to talk about the Firewall in this blog post, however; but rather I wish to discuss the direct monitoring of conversations by humans who listen in on them.

The bottom line is that in the USA, you need a warrant to listen in on a phone conversation; in China you don’t. This is no surprise, it’s right in keeping with our notions of the differences between the two countries. Isn’t it? After all, the two countries are very different, aren’t they? Or, I always assumed they were. Unfortunately, in recent years my assumptions have been assaulted.

One time I was joking on the phone, in an international phone call, with a friend. I said something stupid, meaning I joked about a "nuke" or a "uzzi" or something equally ridiculous, which could have been quite threatening if it had been real. My friend cautioned me not to talk like that. I said, "Yeah, the Chinese government might not like it too much." He replied, "It’s not just the Chinese. There’s this new thing called the Patriot Act. You should be careful what you say."

Well, I guess he was right, except it wasn’t the Patriot Act. I learned just this week that it’s called the "foreign intelligence" exception to the Fourth Amendment requirement of a warrant for searches and seizures.

The Fourth Amendment to the U.S. Constitution reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment is the basis for everything we Americans take for granted about the requirements of search warrants. There have been exceptions carved out from time to time. For instance, the mobility of an automobile means that it might be removed from a crime scene before a warrant could be obtained. This has led to a whole body of law dealing with "exigent circumstances" and various exceptions to the requirement of a warrant. Though there are several similar exceptions, nevertheless, the police agency is supposed to obtain judicial oversight whenever possible.

I want to stress, the only requirements of the Fourth Amendment are (1) reasonableness and (2) judicial oversight. Is this so much to ask? I really don’t think so! Policemen need to stay within the law, too, and judges help them do that. This system of checks and balances, with the executive power being moderated by the judiciary, is one of the strengths of our government that every high school student is taught about in basic civics class.

As for exceptions to the warrant requirement, I suppose the fact of being overseas could, itself, be considered in the same category as an "exigent circumstance," but that doesn’t seem to be the basis for the possible "foreign intelligence" exception. This exception has three bases: (1) the president’s power to conduct foreign relations; (2) the costs of imposing a warrant requirement; and (3) the absence of warrant procedures. It’s a Cold War doctrine, warmed over. This exception has always been applied as against foreign powers and their agents, not U.S. Citizens residing abroad. Until just a few weeks ago.

In the recent case of In re Terrorist Bombings of U.S. Embassies in East Africa (Fourth Amendment Challenges), (for link to this 11/24/08 decision clickHERE), the Second Circuit Court of Appeals decided that the foreign intelligence exception would be applied to warrantless wiretapping and search of a U.S. Citizen living abroad.

A brief perusal of the decision appears, to me, to be a sharp slide down a short, slippery slope. The rationale for leaving out the judiciary from the probable cause determination don’t really seem to apply here. This case did not involve sensitive negotiations with or between foreign governments, it does not involve a non-U.S. citizen or any issues regarding sovereignty of another country’s judicial standards or processes. These days, there are very fast and economical ways of communicating with federal judges, even across vast distances. An order issued by a U.S. judge regarding a U.S. Citizen would not need to involve any other power nor affect any right within the foreign country. Moreover, the fact that the drafters of the Fourth Amendment did not envision this particular application does not change the fact that it was intended as a protection of the rights of citizens Finally, it is no excuse that procedures are not currently in place. Procedures are not impossible to create.

I must say, this decision flabbergasts me in its narrow mindedness and dogged determination to rationalize limiting the scope of a right that is fundamental to the American notion of due process. The court took more than a year to issue its opinion, which is 30 pages long, and one might surmise that the case got so much judicial attention and care because it was obviously headed for review by the U.S. Supreme Court. However, the opinion is so badly lacking in analysis or precedent that a first year law student could have written it. I can only hope that when the issue is finally decided at a higher level, it will receive the proper briefing and painstaking analysis that it deserves.

In a sense, my concern over the depth of this issue is needless. For one thing, as a practical matter, eliminating the warrant requirement is not going to make a diddly damn bit of difference for most Americans living abroad. It will be as transparent to other, ordinary people as it was for me. Secondly, as currently applied, the erosion of the warrant requirement will only affect criminals. In order for it to impact ordinary citizens, it will have to be combined with erosion of other rights, such as free speech. The painful erosion, in other words, would only occur when the warrantless search were combined with curtailment of free speech. It’s only in that monopoly game, as yet unplayed, when whispered conversations critical of government land the player in jail. On the other hand, what does this say about erosion of that which it means to be an American? about values concerning fundamental rights and liberties we take for granted as U.S. Citizens?

There is a saying that "bad cases make bad law." Nowhere is this more evident than in the knee jerk responses to 9-11. Yes, of course as a country we must fight terrorism, lawlessness, and intolerance. But we need not become terrorist , lawless, or intolerant ourselves in the process.

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*(The term "Big Brother" is a reference to the surveillance activities in the novel 1984 by George Orwell.)

** For those strict constructionists who think there ought to be no rights other than those specifically enumerated in the Constitution, I’ll note that Griswold was decided not in the context of abortion, but rather to strike down a Connecticut law which made it a crime to prescribe any form of contraception. In other words, unless you believe the government should be able to forbid any form of birth control whatsoever merely on the basis of right or wrongness of birth control itself (as opposed to regulations designed for safety or health), and unless you agree with the notion that police ought to be able to come into your bedroom to ascertain whether you are violating anti contraception laws, then you too agree with the fundamental idea that there ought to be a Right of Privacy, and thus you cannot be a strict constructionist.

***The 9th Amendment reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," while the Due Process Clause of the 14th Amendment reads, "nor shall any State deprive any person of life, liberty, or property, without due process of law;" with the concept of "Due Process" construed as encompassing everything that it takes to ensure the rights enumerated in the first seven Amendments.